Leonne Velickovic on behalf of Widji People/Western Australia/Cazaly Resources Limited

[2005] NNTTA 11

NATIONAL NATIVE TITLE TRIBUNAL

Leonne Velickovic on behalf of Widji People/Western Australia/Cazaly Resources Limited, [2005] NNTTA 11 (19 March 2005)[2004] NNTTA --- (- December 2004)

Application No:        WO04/61 and WO04/62

IN THE MATTER of the Native Title Act 1993 (Cth)

-and-

IN THE MATTER of an inquiry into an expedited procedure objection applications

Leonne Velickovic on behalf of Widji People – WC98/27 (native title party)

-and-

The State of Western Australia (Government party)

-and-

Cazaly Resources Limited Ltd (grantee party)

DETERMINATION THAT THE ACT IS AN ACT ATTRACTING THE EXPEDITED PROCEDURE

DECISION TO DISMISS OBJECTION APPLICATION

Tribunal:  Hon C J Sumner, Deputy President
Place:  Perth
Date:  -19  December 2004March 2005

Catchwords:  Native title – future act – proposed grant of prospecting licences – expedited procedure objection applications – not likely to be interference with the carrying on of community or social activities, sites of particular significance or major disturbance to land – act attracts the expedited procedure

failure within a reasonable time to proceed with objection applications – failure to comply with Directions – objection applications dismissed.

Legislation:Native Title Act 1993 (Cth) ss 29, 148(b), 148(b), 151(2), 237

Mining Act 1978 (WA) s 57(4)

Aboriginal Heritage Act 1972 (WA) ss 5, 17, 18, 57, 62

Cases:Cheinmora v Striker (1996) 142 ALR 21

Dann v Western Australia (1997) 74 FCR 391

Linda Champion on behalf of the Central West Goldfields People/Western Australia/Vosperton Resources Pty Ltd, NNTT WO04/41, [2005] NNTTA 1 (1 February 2005), Hon C J Sumner

Little v Western Australia [2001] FCA 1706; (2001) 6(4) AILR 67

Silver v Northern Territory of Australia [2002] NNTTA 18; (2002) 169 FLR 1

Smith v Western Australia [2001] FCA 19; (2001) 108 FCR 442

Walley v Western Australia [2002] NNTTA 24; (2002) 169 FLR 437

Wilma Freddie and Others on behalf of the Wiluna Native Title Claimants/Western Australia/Adelaide Prospecting Pty Ltd, NNTT WO02/281, [2003] NNTTA 120 (27 November 2003), Hon E M Franklyn QC

Leonne Velickovic on behalf of Widji People/Western Australia/Cazaly Resources Limited, NNTT WO04/7, [2004] NNTTA 104 (5 November 2004)

Leonne Velickovic on behalf of Widji People/Western Australia/Allarrow Pty Ltd; Coniston Pty Ltd, NNTT WO03/668 & WO03/764, [2004] NNTTA 43 (18 June 2004), Hon C J Sumner

Teelow v Page [2001] NNTTA 107; (2001) 166 FLR 266

Representative of the

native title party:               Mr Jerome Frewen, Desert Management Pty Ltd

Representative of the

grantee party:  Mr Nathan McMahon

Representative of the        

Government party:           Mr Clyde Lannan, Department of Industry and Resources

REASONS FOR DECISION TO DISMISS OBJECTION APPLICATIONSDETERMINATION

Background

[1]        On 14 19 May 2004, the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) (‘the Act’) of its intention to grant prospecting licences P16/2215, P16/2216, P16/2217, P16/2218, P16/2219 and P16/2220 (‘the proposed licences’) to Cazaly Resources Ltd (‘the grantee party’) under the Mining Act 1978 (WA) and included in the notice a statement that it considered that the grants attracted the expedited procedure (that is, are future acts which can be done without the normal negotiations required by s 31 of the Act).

[1]On 19 March 2004, the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) (‘the Act’) of its intention to grant prospecting licences P24/3861, P24/3862, P24/3863, P24/3864, P24/3865, P24/3866, P26/3220, P26/3221, P26/3222, P26/3223, P26/3224, P26/3225, P26/3226, P26/3227, P26/3228, P26/3229, P26/3230, P26/3240, P26/3241, P27/1630, P27/1631, P27/1632, P27/1633, P27/1634, P27/1635, P27/1636 (‘the proposed licences’) to Cazaly Resources Ltd (‘the grantee party’) and included in the notice a statement that it considered that the grant attracted the expedited procedure.

[1]Since January 2004 it has been the Government party’s policy not to advertise exploration tenements as attracting the expedited procedure unless the grantee party has demonstrated its commitment to consultation with native title claimants over heritage issues.  The Government party considers that this commitment is best demonstrated by a statutory declaration or affidavit that a Regional Standard Heritage Agreement (‘RSHA’) (being a region specific agreement intended in this case to cover the area nominally represented by the Goldfields Land and Sea Council) already exists, or has been signed by the grantee party and forwarded to an affected registered native title claimant group.  If a RSHA has not been negotiated or forwarded, then it must be evidenced that an alternative heritage agreement exists.

[2]        On 19 May 2004, Leonne Velickovic on behalf of the Widji People (‘the native title party’) lodged an expedited procedure objection application with the Tribunal, relying on all three limbs of s 237 of the Act. The native title party’s application for determination of native title (WC98/27) was entered on the Register of Native Title Claims from 15 June 1998.

[1]Leonne Velickovic on behalf of Widji People (‘the native title party’) lodged expedited procedure objection applications with the Tribunal in 19 May 2004 in relation to the proposed licences (WO04/61) and (WO04/62).

Relevant Facts (Alternative one)

The proposed licences located in the Mining Registrar area of Coolgardie are P16/2215 to P16/2220 and between 27 to 39km north and north east of Coolgardie and in the Shire of Coolgardie. Areas in hectares range between 117.51 and 169.8.

The proposed licences located in the Mining Registrar area of Kalgoorlie are P24/3861 to P24/3866; P26/3220 to P26/3230; P26/3240 to P26/3241; P27/1630 to P27/1636. The proposed licences are located up to 42km north/north east of Kalgoorlie and up to 19km south east of Kalgoorlie and in the City of Kalgoorlie-Boulder. Areas in hectares range between 108.21 and 200.

Relevant Facts (Alternative two)

[3]        The area, location, and percentage to which the grantee party’s proposed licences are overlapped by the Widji registered native title claim are as follows:

·P16/2215 – 169.8 hectaresa, 39 kilometresm north westerly of Coolgardie in the Shire of Coolgardie, 100% overlap;

·P16/2216 – 117.51 hectaresa, 36 kilometresm northerly of Coolgardie in the Shire of Coolgardie, 100% overlap;

·P16/2217 – 121.4ha4 hectares, 35 kilometres north westerly of Coolgardie in the Shire of Coolgardie, 100% overlap;

·P16/2218 – 121.37 hectaresa, 35 kilometres northerly of Coolgardie in the Shire of Coolgardie, 100% overlap;

·P16/2219 – 134.78 hectaresa, 29 kilometresm northerly of Coolgardie in the Shire of Coolgardie, 100% overlap;

·P16/2220 – 121.36 hectaresa, 27 kilometresm northerly of Coolgardie in the Shire of Coolgardie, 100% overlap

[4]        In addition two other registered claim groups overlap the proposed licence as follows and have the status of native title parties:

·Maduwongga People (WC99/9) – 100% overlap;

·Central West Goldfields People (WC99/29) – 100% overlap

[5]        On 28 June 2004 the Central West Goldfields native title party also lodged an expedited procedure objection application with the Tribunal in relation to the proposed licences (WO04/104).  This objection was withdrawn following an agreement between the native title party and the grantee party on 15 November 2004.  I infer from evidence given in other objection inquiries that this agreement was the Central West Goldfields Alternative Agreement (‘CWAHA’) and not the Regional Standard Heritage Agreement (‘RSHA’) referred to below, both of which have been in evidence before the Tribunal.  No objection was lodged by the Maduwongga native title party.

Regional Standard Heritage Agreement (RSHA)

[6]        Since January 2004 it has been the Government party’s policy not to advertise exploration or prospecting tenements as attracting the expedited procedure unless the grantee party has demonstrated its commitment to consultation with native title claimants over heritage issues.  The Government party considers that this commitment is best demonstrated by a statutory declaration or affidavit that a Regional Standard Heritage Agreement (‘RSHA’) (being a standard region specific agreement negotiated by the Government party, relevant Native Title Representative Body (‘NTRB’) and industry) already exists, or has been signed by the grantee party and forwarded to an affected registered native title claimant group.  If a RSHA has not been negotiated or forwarded, then the Government party must be satisfied that an alternative heritage agreement exists.  The Government party’s policy in relation to RSHAs and Tribunal findings about their relevance in expedited procedure objection inquiries are explained in Linda Champion on behalf of the Central West Goldfields People/Western Australia/Vosperton Resources Pty Ltd, NNTT WO04/41, [2005] NNTTA 1 (1 February 2005), Hon C J Sumner at [15]-[35] (‘Linda Champion’).  In the present matter the relevant RSHA is one negotiated with the Goldfields Land & Sea Council (‘GLSC’) the NTRB for the area.  The grantee party executed a RSHA with the Central West Goldfields native title party and sent it to the GLSC on 5 February 2004 for execution by the native title party.

Conduct of the inquiry

;P24/3861 – 196.19ha, 37km north of Kalgoorlie in the City of Kalgoorlie-Boulder, 100% overlap;

·P24/3862 – 170.21ha, 38km north of Kalgoorlie in the City of Kalgoorlie-Boulder, 100% overlap;

·P24/3863 – 180.21ha, 39km north of Kalgoorlie in the City of Kalgoorlie-Boulder, 100% overlap;

·P24/3864 – 196.4ha, 39km north of Kalgoorlie in the City of Kalgoorlie-Boulder, 100% overlap;

·P24/3865 – 186.01ha, 41km north of Kalgoorlie in the City of Kalgoorlie-Boulder, 100% overlap;

·P24/3866 – 200ha, 42km north of Kalgoorlie in the City of Kalgoorlie-Boulder, 100% overlap;

·P26/3220 – 142.94ha, 14km south east of Kalgoorlie in the City of Kalgoorlie-Boulder, 100% overlap;

·P26/3221 – 199.74ha, 11km south east of Kalgoorlie in the City of Kalgoorlie-Boulder, 100% overlap;

·P26/3222 – 199.63ha, 12km south east of Kalgoorlie in the City of Kalgoorlie-Boulder, 100% overlap;

·P26/3223 - 108.23ha, 13km south east of Kalgoorlie in the City of Kalgoorlie-Boulder, 100% overlap;

·P26/3224 – 200ha, 13km south east of Kalgoorlie in the City of Kalgoorlie-Boulder, 100% overlap;

·P26/3225 – 200ha, 14km south east of Kalgoorlie in the City of Kalgoorlie-Boulder, 100% overlap;

·P26/3226 – 199.98ha, 15km south east of Kalgoorlie in the City of Kalgoorlie-Boulder, 100% overlap;

·P26/3227 – 199.97ha, 16km south east of Kalgoorlie in the City of Kalgoorlie-Boulder, 100% overlap;

·P26/3228 – 199.94ha, 19km south east of Kalgoorlie in the City of Kalgoorlie-Boulder, 100% overlap;

·P26/3229 - 18km south east of Kalgoorlie in the City of Kalgoorlie-Boulder, 100% overlap;

·P26/3230 – 199.95ha, 17km south east of Kalgoorlie in the City of Kalgoorlie-Boulder, 100% overlap;

·P26/3240 – 183.65ha, 12km north east of Kalgoorlie in the City of Kalgoorlie-Boulder, 100% overlap;

·P26/3241 – 191.32ha, 12km north east of Kalgoorlie in the City of Kalgoorlie-Boulder, 100% overlap;

·P27/1630 – 172.22ha, 13km north east of Kalgoorlie in the City of Kalgoorlie-Boulder, 100% overlap;

·P27/1631 – 186.14ha, 13km north east of Kalgoorlie in the City of Kalgoorlie-Boulder, 100% overlap;

·P27/1632 – 46.18ha, 15km north east of Kalgoorlie in the City of Kalgoorlie-Boulder, 100% overlap;

·P27/1633 – 189.32ha, 4km north east of Kalgoorlie in the City of Kalgoorlie-Boulder, 100% overlap;

·P27/1634 – 179.22ha, 15km north east of Kalgoorlie in the City of Kalgoorlie-Boulder, 100% overlap;

·P27/1635 – 185.52ha, 16km north east of Kalgoorlie in the City of Kalgoorlie-Boulder, 100% overlap;

·P27/1636 – 200ha, 15km north east of Kalgoorlie in the City of Kalgoorlie-Boulder, 100% overlap.

[1]On 31 May 2004 in accordance with its normal Procedures under the Right to Negotiate Scheme, the Tribunal gave directions to the parties to provide contentions and documents for an inquiry to determine whether or not the expedited procedure is attracted. These directions were in the usual form which, if the parties consent, allow a four month period from the s 29 closing date for objections (i.e. 19 September 2004) for parties to negotiate or finalise agreement over the grant of the tenement, usually by withdrawal of the objection following agreement between the native title and grantee parties about protection of Aboriginal Heritage. Government party compliance was due on 10 January 2005 and native title party compliance on 17 January 2005. On 13 July 2004 the TribunalFor both matters the Tribunal initially made Directions for all parties to produce contentions and evidence for the conduct of the inquiries on 31 May 2004. The native title party was to provide a statement of contentions, documentary evidence and witness statements verified where possible by affidavit by 22 November 2004 (WO04/62) and 17 January 2004 (WO04/61). The Directions contain a statement that an objection may be dismissed pursuant to s 148(b) of the Act if the objector fails within a reasonable time to proceed with the application or to comply with a direction of the Tribunal.

[7]        On 13 July 2004 the Tribunal convened an Adjourned Preliminary Conference, at w was advised by hich Mr  Nathan McMahon, the grantee representative, advised that asthat the grantee had executed a Goldfields Regional Standard Heritage AgreementRSHA, and therefore considered that it had fulfilled its obligations in relation to heritage protection, in accordance with State policy.  Because the Widji native title party does not accept the RSHA and the grantee party is not prepared to consider an alternative agreement, Mr McMahon it  and wished to deal with the matter in the inquiry processrequested that the matter be determined by a Member of the Tribunal.  Directions were eventually made for Government party compliance on 19 November 2004 and native title party compliance on 26 November 2004.

[8] At the request of Mr Jerome Frewen, representative of the native title party, dates for compliance were subsequently amended on two further occasions. On 3 December 2004, I also considered and rejected an application by the grantee party, supported by the Government party, for dismissal of the objection application pursuant to s 148(b) of the Act because the native title party had not complied with the directions on the basis of Mr Frewen’s argument that Widji law business hampered the gathering of evidence between the period December 2004 to February 2005. On 15 December 2004, by which time only partial compliance in the form of a Statement of Contentions had been received from the native title party, I issued final directions allowing all parties leave to submit any further contentions and evidence in the light of my then forthcoming determination in Linda Champion.  The present objection inquiry has similar issues regarding the relevance of the RSHA in expedited procedure inquiries to those in Linda Champion.  In so permitting contentions on this subject, the native title party was also afforded one final opportunity to fully comply with directions by way of provision of affidavit evidence.

[1]             Mr Frewen, who did not attend this hearing, was advised of the outcome and his consent sought for the proposed amended compliance framework via email on 19 July 2004. In the absence of a response, the Tribunal wrote a letter to Mr Frewen on 23 September 2004 advising of my decision to amend Directions compliance dates and setting native title party compliance dates for 8 October 2004.

[1]In the letter of the 23 September 2004, the Tribunal also reminded the native title party and all other parties of the consequences of non-compliance with Directions, in particular the possibility of dismissal of the objections under s 148(b) of the Act. A further (letter?) reminder that compliance was overdue was sent on 29 September 2004.  No response was received by the Tribunal from the native title party addressing the issues raised in either correspondence.

[1]At the Listing Hearing on 22 October 2004 at which all parties were in attendance,  Directions were reset, requiring native title party compliance due onby 26 November 2004.

[1]The Government party complied with Directions on 12 November 2004 (WO04/62) and 15 November 2004 (WO04/61). The grantee party having confirmed its intent (via letter ?) on 29 September 2004 to rely on the Government party’s submissions, no further material was forthcoming from it. 

[9]        On 9 November 2004, Mr Frewen advised via email that “Law Business” involving the native title party would commence in early December.  As a consequence of this, Mr Frewen indicated that no ‘no expedited procedure matters [could] be transacted’.  On 15 November 2004, the Tribunal wrote to the parties in this matter inviting any submissions in response by 22 November 2004.  No submissions were received.Contentions and evidence from the Government party and the native title party were provided by 18 February 2005 as directed. The grantee party has sought to rely on contentions submitted by the Government party. Mr Frewen requested that the objection be heard ‘on country’. The Government and grantee parties have submitted that the matter should be dealt with ‘on the papers’ before the Tribunal. In recent times, in Western Australia, the Tribunal has not found it necessary to conduct an oral hearing ‘on country’ in expedited procedure matters and there is nothing peculiar to this matter which makes such a hearing necessary. I am satisfied that I can adequately deal with the matter on the papers in accordance with s 151(2) of the Act.

[1]              

[1]             On 2 December 2004

[1]Adjourned Listing Hearing on 3 December 2004 and outcome of non-compliance by the native title party Carolyn - needs to be completed – it should only be short.  In response to Mr Frewen’s submission and the grantee representative’s response, I convened an adj LH on 3 December 2004. On the basis of this non-compliance, the grantee and State requested that the objection application be dismissed. However, the native title party made detailed submissions on the reason for this non-compliance (Carolyn – incorporate what actually happened at the adj LH from your draft in this para in very summary form).…. I accepted these submissions and reset Directions, requiring native title party compliance by 10 December 2004..

[1]             On 10 December 2004, a statement of contentions was lodged with the Tribunal on behalf of the native title party.  In the covering letter to this material, Mr Frewen indicated that he intended to submit the remainder of the materials required by the Directions ‘in the next few days’.

[1]             On 15 December 2004, I convened a further adjourned Listing Hearing during which I again pointed out to the parties that submission of statements of contention without supporting evidence did not constitute compliance with the Tribunal’s Directions. (Carolyn – incorporate a summary of CJS’ discussion of SHA and further Directions from your draft)

[1]             On 24 January 2005, an affidavit sworn by Mr Leonne Velickovic, named applicant …. (Carolyn – please complete para)

[1]             On 17 February 2005, the Government party submitted copies of affidavits signed by the grantee’s Director and representative, Mr Nathan McMahon,  confirming that Goldfields RSHAs had been executed by the grantee and copies served on the Goldfields  Land and Sea Council in accordance with current Government policy.

[1]             Further Government submission of 18 Feb – condition

[1]             Carolyn – summarise the content of your draft here relating to RSHA, NTP contentions etc

Legal Principles

[10] Section 237 of the Act provides:

‘237    Act attracting the expedited procedure

A future act is an act attracting the expedited procedure if:

(a)    the act is not likely to interfere directly with the carrying on of the community or social activities of the persons who are the holders (disregarding any trust created under Division 6 of Part 2) of native title in relation to the land or waters concerned; and

(b)    the act is not likely to interfere with areas or sites of particular significance, in accordance with their traditions, to the persons who are the holders (disregarding any trust created under Division 6 of Part 2) of the native title in relation to the land or waters concerned; and

(c)     the act is not likely to involve major disturbance to any land or waters concerned or create rights whose exercise is likely to involve major disturbance to any land or waters concerned.’

[11]      In Walley v Western Australia [2002] NNTTA 24; (2002) 169 FLR 437 (‘Walley’), I considered the applicable legal principles (at [7]-[23]) and the nature of a prospecting licence and conditions to be imposed including what activities are permitted by it and what limits are placed on those activities (at [24]-[35]). I adopt those findings for the purposes of this inquiry.

Evidence in relation to the proposed act

[12]      Government party documentation establishes the underlying land tenure of the proposed licences to be:

P16/2215 to P16/2218 inclusive:

·Pastoral Lease 3114/1222, known as Mt Burges, vested in Centaur Mining & Exploration Ltd and Mt Kersey Mining NL, encompassing 100% of the proposed licences.

P16/2219 and P16/2220

·Pastoral Lease 3114/1222 known as Mt Burges vested in Centaur Mining & Exploration Ltd and Mt Kersey Mining NL encompassing 98.4% of P16/2219 and 99.6% of P16/2220.

·Coolgardie North Road Reserve encompassing less than 0.1% of the subject area.

[13]      There are neither Aboriginal communities nor sites registered with the Department of Indigenous Affairs pursuant to the Aboriginal Heritage Act 1972 (WA) within or in the immediate vicinity of the proposed licences.

[14]      Tengraph ‘Quick Appraisals’ documentation sourced by the Tribunal and applicable to the “Applied for” area of land show two granted mining leases (M16/177 and M16/139) overlapping a portion of the subject area, in addition to one ‘pending’ mining lease application (M16/384) and one granted prospecting licence (P16/1652).  Ten previously granted ‘dead’ prospecting licences and two previously granted ‘dead’ mining leases also substantially overlap the area of the proposed licences, active variously between 1989 and 2004, in addition to a number of historical gold mining leases granted variously in the period 1894 to 1928.  Further, ‘Quick Appraisal’ data indicates that the entire area of the proposed licences is subject to a ministerial direction pursuant to s 57(4) of the Mining Act, which prohibits the making or grant of an exploration licence on the basis that extensive mining is being carried out.  It is clear that the entire area has been subject to considerable exploration and mining activity and continued interest in the area.

[15]      In addition to the Central West Goldfields native title party objection (WO04/104) referenced in para [5], a further nine objections have been received from the period 1998 to date in relation to tenements overlapping or abutting the proposed licences, the majority being finalised by way of objection withdrawal or dismissal following withdrawal of the tenement application. 

[16]      The grant of the proposed licences will be subject to the standard endorsements and conditions imposed on the grant of all prospecting licences in Western Australia:

‘ENDORSEMENTS

1.The Licensee’s attention is drawn to the provisions of the Aboriginal Heritage Act, 1972.

CONDITIONS

1.All surface holes drilled for the purpose of exploration are to be capped, filled or otherwise made safer after completion.

2.All costeans and other disturbances to the surface of the land made as a result of exploration, including drill pads, grid lines and access tracks, being backfilled and rehabilitated to the satisfaction of the Environmental Officer, Department of Industry and Resources (DoIR). Backfilling and rehabilitation being required no later than 6 months after excavation unless otherwise approved in writing by the Environmental Officer, DoIR.

3.All waste materials, rubbish, plastic sample bags, abandoned equipment and temporary buildings being removed from the mining tenement prior to or at the termination of exploration program.

4.Unless the written approval of the Environmental Officer, DoIR is first obtained, the use of scrapers, graders, bulldozers, backhoes or other mechanised equipment for surface disturbance or the excavation of costeans is prohibited. Following approval, all topsoil being removed ahead of mining operations and separately stockpiled for replacement after backfilling and/or completion of operations.

5.The Licensee notifying the holder of any underlying pastoral or grazing lease by telephone or in person, or by registered post if contact cannot be made, prior to undertaking airborne geophysical surveys or any ground disturbing activities utilising equipment such as scrapers, graders, bulldozers, backhoes, drilling rigs; water carrying equipment or other mechanised equipment.

6.The Licensee or transferee, as the case may be, shall within thirty (30) days of receiving written notification of:-

·      The grant of the Licence; or

·      Registration of a transfer introducing a new licensee; advise, by registered post, the holder of any underlying pastoral or grazing lease details of the grant or transfer.’

[17]      In the case of P16/6616 a further condition is made as follows:

‘2.     The grant of this Licence does not include land the subject of Mining Lease 16/177.’

[18]      On 18 February 2005, after consideration of my decision in Linda Champion, the Government party advised that the following extra condition (‘the proposed condition’) would be applied to the grant of the proposed licences:

‘The Licence, if so requested in writing by the Central West Goldfields People, the applicants in Federal Court application no. WAG65 of 1998 (WC99/29), such request being sent by pre-paid post to reach the Licensee’s address [see below for respective addresses] not more than ninety days after the grant of the licence, shall within thirty days of the request execute in favour of the Central West Goldfields People the Regional Standard Heritage Agreement (“RSHA”) endorsed by peak industry groups and the Goldfields Land and Sea Council in respect of the area covered by this licence.’

The explanation provided by the Government party for the imposition of a condition relating to the Central West Goldfields native title party as distinct from the Widji naïve title party (the objectors in this matter) is as follows:

‘The Government party will only place a condition that the Grantee party enter into one heritage agreement per mining tenement application in order to avoid the otherwise prohibitive costs that may arise where more than one heritage survey is required.’

Native title party contentions and evidence

[19] The native title party contends that the grant of the proposed licences will impact on all three limbs of s 237 of the Act for the following reasons:

·“Ancestors” of the Widji native title party have lived and worked in the vicinity of the tenements “since the late 1800s”, and native title party members visit the Kunanalling area to hunt and gather traditional foods, bush medicines and materials for the manufacture of traditional tools and implements.  “The grant of the tenement will result in large areas of their traditional lands there being closed off to the Objectors while exploration and associated activities are being carried out.”

·Intensive exploration will destroy food “sometimes beyond regrowth” and cause the evacuation of wild game.

·Use of the area by elders to educate younger native title party members in the traditional methods of hunting and gathering will be curtailed or prevented.

·The destruction of the “spirituality” of the land which will occur as a result of the grant will cause the spiritual link to the land to “be diminished and commence to disintegrate, as has happened historically to other Aboriginal communities that have lost their link with the land”.  The native title party contends that this impact will be “substantial in nature”.

·The provisions of the Aboriginal Heritage Act apply only to registered sites and “cannot afford protection to areas or sites on the land whose presence is not know to the Grantee Party ...”.

·Section 62 of the Aboriginal Heritage Act provides “an escape route for parties intent on not abiding by the spirit of the Act” (this section provides that “… it is a defence for the person charged to prove that he did not know and could not reasonably be expected to have known, that the place or object to which the charge relates was a place or object to which this Act applies.”). The native title party considers the intentions of any grantee party not willing to consult with the native title party regarding heritage “suspect”.

·The grantee party has not entered into a heritage agreement with the native title party.

·There are a number of unregistered and largely unmapped water-sources associated with a “significant” Tjukurpa (Dreaming) story, either within or close to the area of the proposed licences.  “If unfettered exploration commences, there is a high likelihood of areas or sites of significance to the Objectors being destroyed.”

·The rights conferred by the grant of the proposed licence (s 48 Mining Act) constitute major disturbance of the ground “even from the viewpoint of the general community”.

[20]      In support of its objection and contentions, the native title party relies on the affidavit evidence of Mr Leonne Dale Velickovic, sworn at Kalgoorlie on 4 January 2005:

‘I, LEONNE DALE VELICKOVIC, of PO Box Coolgardie, in the State of Western Australia, Native Title Applicant, being duly sworn make oath and say as follows:

1.   That I am an Applicant for a determination of native title in relation to the area of land and waters affected by the application of the Grantee Party for Prospecting Licences P16/2215–2220;

2.   Aboriginal traditional religion, whose practices and doctrines I and my family follow, is a land-based religion, that is, its shrines, holy places and places associated with our ancestors are part of the land and are often not marked or obvious to people not of our religion or of our beliefs;

2.     Aboriginal religion distinguishes between the roles, duties and obligations of men and women. That is not to say that one is inferior to the other or less important than the other. Both men and women have a role in the Aboriginal religion and in carrying on the traditions of the creation time which is called in English the Dreaming.  Both men and women share certain holy places on the land, but both men and women also have their own special holy places;

3.     The senior men of each Aboriginal group have the duty of maintaining the spirituality of the land and of seeing that this spirituality is passed on undamaged to the next generation.  Along with Gary Dimer, I am a senior man of the Widji people;

5.     Damage to holy places on the land will take from, or sometimes destroy, the spirituality that is in the land.  If that happens then the senior men of the group in whose land the damage has occurred have failed in their duty to maintain the spirituality of the land and to pass that on undamaged to the next generation;

6.     Some of the shrines and holy places on the land are specific to the group in whose lands they are located, that is, they refer only to ancestral or Dreaming persons or spirits who are associated only with that particular area.  If damage occurs to these holy places which the senior men of the group had it in their power to prevent, then we believe that misfortune, illness and unexpected death will occur within the group.  The blame for these occurrences will rest with those people who could and should have prevented the damage in the first place;

7.   Some of the shrines and holy places on the land deal with ancestral or Dreaming spirits or persons who travelled extensively throughout the country and crossed and re-crossed the traditional lands of many different Aboriginal groups.  It is a fact of Aboriginal religion that the people in whose traditional lands shrines or holy places associated with ancestral or Dreaming spirits or persons of this nature are located are held responsible by all other peoples associated with that particular Dreaming throughout the country for the protection from damage of those shrines and holy places.  This is a duty that the people from each specific tract of traditional country cannot avoid.  The blame for misfortune arising from negligence in looking after the Dreaming places will rest with those people who could and should have prevented the damage in the first place. Traditional punishments will probably be levelled against them;

8.   The Government of Western Australia has enacted the Aboriginal Heritage Act in order to, amongst other things, assist the traditional Aboriginal people of Western Australia in fulfilling their obligations to protect shrines and holy places on their land and also on the lands of their neighbours, should a threat be posed against shrines and holy places associated with a Dreaming that passes through the traditional lands of several different groups.  However, the Department of Indigenous Affairs and Aboriginal Cultural Material Committee that administer the legislation can only act to protect places that they know about.  A great many shrines and holy places, probably the majority of them in Western Australia, have never been registered for protection with that Department or Committee because nobody has ever had cause to carry out that registration, either because the relevant Aboriginal people were never asked about a particular area within their traditional lands, or because there was no reason to register such places, as there was no threat to them.  Therefore, the fact that there may be no listings in the Register of Aboriginal Sites for sites in a particular area is not indicative of the presence or absence of such places.  Hather it is indicative of the fact that nobody has previously inspected that particular area for such sites.  That is, it is indicative of a failing or shortcoming in the database rather than providing any level of certainty that such sites do not exist in any given area;

9.   I was thus brought to the area by my grandfather, Mr Ollan Dimer and his grandmother’s brothers, the late Phil Donaldson and Clem Donaldson.  Phil Donaldson was the iniated senior elder for that area. This community activity will be directly curtailed and at times prevented by the exercise of the Grantee Party of its rights in respect of the tenement, should it be granted

10. Because of the group’s long association with lands including the tenement, it has been my custom to visit Kunanalling and the creeks which drain from this area into the wash country to the east and west to hunt for traditional meat foods and to gather traditional vegetable foods, bush medicines and materials for the manufacture of traditional tools and implements.  Elders of our group have been accustomed to bring young group members and other children regularly to the Kunanalling area and to the creeks which drain from there into the wash country to the east and west for the purpose of instructing them on the procurement of traditional vegetable foods, fruits and bush medicines

11. I am aware that the tenements contain sites of extremely high cultural and historical significance to our people, in accordance with our traditions.  One of the two most significant Tjukurpa stories of the Kalgoorlie-Coolgardie region commences in a cave to the northeast of Credo Station.

12. I can tell you that this story tells of how Yakin, the Moon ancestral spirit, came to earth to fight with a family of mice spirits.  The mice caused lightning to flash and a huge thunderstorm to follow.  The mark of the lightning is still visible to this day on the wall of the cave.  The ensuing floods floated the Moon back to its present position and created the wash country to the east and west of Kunanalling.  More importantly for traditional Aboriginal people, it also created the large numbers of water soakages in that wash country, all of which are associated with the Tjukurpa story.  Some of these unnamed, unregistered and largely unmapped water-sources are either within or close to the tenements.  In addition, and more importantly, the Objectors state that, as these water-sources were established in the era of the Tjukurpa, which non-Aborigines refer to as “Dreamtime” by the sacred ancestors, it is important for non-Aborigines to understand that these are not “just a few little creeks or soaks” and for them also to leave behind European notions of boundedness and to begin to view the spiritual aspects of country holistically, as Aboriginal people do. The immanent spirituality of the land, to which the Widji and other Aboriginal people are linked by an unbroken family line back to the Tjukurpa, is made manifest in these water-sources as this water of the bush is one of the sources of spiritual life to the people.  Also, there are other sacred and ceremonial sites in the vicinity of these named places, whose locations and stories are known only to relevant Aboriginal elders.  If unfettered exploration commences, there is a high likelihood of areas or sites of significance to the Objectors being destroyed.  This is an unavoidable fact.

13. People from traditional Aboriginal communities throughout the Great Victoria Desert also hold me, and the other senior men from the Central West group [sic], responsible for the protection from damage of shrines and holy places associated with the Dreaming in our traditional lands.  If any of these shrines or holy places is damaged, then we will be held responsible for the damage and for the misfortune, illness and perhaps death that will follow;

14. The Widji people, in recognition of the traditional importance of the country in which Prospecting Licences P16/2215-2220 are situated, requested that a full Aboriginal heritage survey of the lease in question should be carried out in order that any sites identified can be protected from destruction.  The Company can then carry on its exploration and mining.  To that end, the Widji people provided the Applicant with a standard Widji Heritage Agreement.  The Widji people indicated that this could be modified where amendments are agreed upon;

15. The Applicant has nominated the Goldfields Land Council Standard Heritage Agreement, which is used by clients of the GLC.  The Widji people are not represented by the GLC, and the agreement nominated by the GLSC has no standing with the Widji people;

16. To avoid this happening, it is necessary for the leases in question to be visited by the Widji people in the company of a qualified anthropologist acceptable to the Aboriginal people, in order to demarcate and delineate the sites in question.  The work should be carried out under prescribed conditions that are based upon the Widji people’s Aboriginal heritage protocol, are clearly understood by all parties, and can be utilised by all parties for all future activities of the Company in the traditional lands of the Widji people;

17. In brief, therefore, the traditional religious life of the Widji people will be put under threat by the grant of Prospecting Licences P16/2215-2220 without a full Aboriginal Heritage survey being first of all carried out over the leases.  In addition, the community life of the Widji people will be adversely affected should damage to shrines or holy places associated with the Dreaming occur, as people throughout the Great Victoria Desert will hold them responsible for the ills that will occur following such damage.  It is therefore the duty of the Widji people to pursue to the end all avenues open to them to ensure that such damage does not occur.

18. In addition, for as long as living memory and probably for many generations before that, it has been the custom of the Widji people to visit the area in which Prospecting Licences P16/2215-2220 are located to hunt for traditional meat foods and to gather traditional vegetable foods, bush medicines and materials for the manufacture of traditional tools there.  I contend that the unrestricted grant of the exploration licence in question will interfere directly with these activities, as there will be areas of the leases that will be closed to access by my people.’

[21]      Mr Velickovic is one of five persons named as part of the applicant and registered native title claimant for the native title claim of the Widji People. His evidence is uncontested and I accept it including his statement that he is one of two senior men of the Widji People, with attendant responsibilities towards the guardianship of the land with which the native title party is associated.

Community or social activities (s 237(a))

[22]      For the objection to be upheld the evidence must show there is a likelihood (in the sense of a real risk) that there will be substantial impact on the community or social activities of the native title party.  Some evidence in this regard is provided in paras 9, 10 and 18 of Mr Velickovic’s affidavit but assertions are of a general nature, with no evidence provided as to the current frequency of these hunting, gathering and educative visits, the details of them, or the number of claim group members involved in the activities.  Further, the grant of the proposed licences does not confer exclusive rights of access to the grantee party.  Any restriction on access by the native title party will be very limited in area given the nature of prospecting activities and the wide area over which any hunting or gathering may occur.  Any restriction would also be temporary.

[23]      With respect to the contention that the spirituality of the land will be destroyed by exploration activities, the Tribunal accepts the evidence relating to the responsibility of claimants to care for the land and that failure to do so properly will lead to fear of misfortune, illness or death.  The Tribunal has dealt with similar situations in other determinations (Walley v Western Australia at [13]-[21] citing Silver v Northern Territory of Australia [2002] NNTTA 18; (2002) 169 FLR 1 at [50]-[62]) when considering the amendment to s237(a) made in 1998 where the words ‘community or social activities’ were substituted for ‘community life’. The Tribunal has held that the amendment narrowed the scope for contentions of the kind made here to be successful as the requisite interference is no longer with the broader notion of community life but is now more restricted by reference to activities. As Deputy President Franklyn said in Wilma Freddie and Others on behalf of the Wiluna Native Title Claimants/Western Australia/Adelaide Prospecting Pty Ltd, NNTT WO02/281, [2003] NNTTA 120 (27 November 2003), Hon E M Franklyn QC (at 12): ‘That there may be obligations in respect of land does not of itself translate into a community or social “activity” of the claimant group.’

[24]      In this matter there is not only evidence that the claimants believe that misfortune, illness or unexpected death will occur if there is damage to special places for which they have responsibility but also that traditional punishment, ‘will probably be levelled against them’.  The evidence, therefore, goes beyond what was considered in Walley.  I considered the issue of traditional punishment in Linda Champion (at [66]) and as in that matter I can accept that if it could be shown that traditional punishments were in fact administered in the Goldfields area in circumstances where Aboriginal people from that area or elsewhere felt that persons with responsibility for country were not properly attending to their obligations, then this could amount to direct interference with the community and social activities of the native title party claimant group resulting from the grant of the proposed licences.  However, I have before me no evidence that traditional punishment has in fact been administered in the circumstances explained by Mr Velickovic despite the history of extensive exploration activity in the Goldfields area. 

[25] The other difficulty with the native title party’s contentions is that Mr Velickovic says that a proper heritage survey (in his view one carried out according to a Widji Heritage Agreement (‘WAHA’)) will ensure that the Widji peoples’ responsibility to look after the country is met. My finding in relation to s 237(b) is that sites of particular significance are not likely to be interfered with because of the regulatory regime to protect sites. In this case I am satisfied that a heritage survey involving the Central West Goldfields native title party (whose claim also overlaps the entire subject area) will be carried out in accordance with the agreement (CWAHA) which led to the withdrawal of their objection WO04/104.  In the unlikely event that there are concerns about this agreement the Central West Goldfields native title party can insist on a heritage survey carried out in accordance with the RSHA because of the proposed condition which will be imposed on the grant.  While I can infer that there are differences between the RSHA and the WAHA, and probably between the CWAHA and WAHA I am satisfied that surveys carried out in accordance with the RSHA or CWAHA will identify Aboriginal heritage including sites of particular significance to the Widji native title party (see paras [34]-[36] below), thus ensuring in this respect that the country is looked after.

[26]      The Tribunal has held that the existence of prior mining or pastoral activities which have in the past or which currently affect the native title party’s community or social activities may be taken into account in assessing whether the grant of an exploration tenement is likely to further affect such activities (Smith v Western Australia [2001] FCA 19; (2001) 108 FCR 442 at [26]-[27]; Walley at [12]).  Pastoral activities will already have had an impact on the traditional community and social activities of the native title party.  Further, the area of land the subject of the proposed licences has a long history of past, present and future mining activities, and the concerns of claimant groups in the area are evidenced by objections lodged in relation to those acts.  However, related objection applications have in all cases been resolved either by withdrawal of the objection or withdrawal of the tenement application.  While I accept that exploration activities can be detrimental to Aboriginal community activities, there is nothing before me evidencing a prior detrimental affect on community and social activities in this area.

[27]      Taking all these factors into account I find that the exploration activity will not directly interfere with the community or social activities of the native title party in a substantial or more than trivial way.

Sites of particular significance (s 237(b))

[28]      The issue here is whether there is likely to be (in the sense of a real risk of) interference with areas or sites of particular (i.e. more than ordinary - Cheinmora v Striker (1996) 142 ALR 21 at 34-35) significance to the native title party in accordance with their traditions. The fact that no sites are recorded on the Register kept under the Aboriginal Heritage Act does not mean that there may not be such sites over the area of the proposed licence. The Register does not purport to be a record of all Aboriginal sites in Western Australia and the Tribunal will consider whether there is evidence to support the existence of relevant sites in particular matters.  The Aboriginal Heritage Act 1972 (WA) applies to Aboriginal sites whether or not they are on the Register.

[29]      In relation to s 237(b) of the Act, the Government party contends that the provisions of ss 5, 17 and 18 of the Aboriginal Heritage Act, to which the grantee party’s attention is drawn upon grant of the proposed licences, would protect areas or sites of particular significance from interference.  The regulatory regime based on the Aboriginal Heritage Act 1972 (WA) has been described on numerous occasions by the Tribunal (I adopt the findings in Walley at [50]-[51]). In Little v Western Australia [2001] FCA 1706; (2001) 6(4) AILR 67 at [77], the Federal Court found the protective effect of the Aboriginal Heritage Act such as to make interference with sites of particular significance unlikely.  In addition, documents provided in Standard Exhibits, including the revised ‘Guidelines for Consultation with Indigenous People by Mineral Explorers by Mineral and Petroleum Exploration’ (July 2004) ensure the Government’s policy on the use of RSHAs is clear and reaffirms the importance of consultation, with details of how the consultation should occur under the RSHA in the different NTRB areas where claimants have agreed to the RSHA.  These Guidelines also refer to substantial increases in penalties for breaches of the Aboriginal Heritage Act 1972 (WA) introduced in 2003 (s 57) to:

·in the case of an individual for a first offence, $20,000 and imprisonment for 9 months and for a second or subsequent offence, $40,000 and imprisonment for 2 years; and

·in the case of a body corporate, for a first offence $50,000 and for a second or subsequent offence $100,000.

[30]      The Tribunal has previously found that because of the notice of consultation procedures as contained in the Guidelines a grantee party may not be able to rely on the defence in s 62 of the Aboriginal Heritage Act 1972 (WA) that they did not know or could not reasonably be expected to have known of the existence of an Aboriginal site (Walley at [50]). In my view the combined effect of the revised Guidelines and increase in penalties under the Aboriginal Heritage Act 1972 (WA) is to enhance the effectiveness of the Government party’s regulatory regime for the protection of Aboriginal sites.

[31]      At paras 11 and 12 of his affidavit evidence, Mr Velickovic asserts that the proposed licences “contain sites of extremely high cultural and historical significance” and talks of water soakages either within or in the vicinity of the proposed licences which, according to traditional Aboriginal beliefs, were established in the era of the Tjukurpa (Dreamtime).  Tribunal mapping reveals the commencement point of the Tjukurpa, reported to be a cave to the north east of Credo Station to be a considerable distance from the subject area.  Credo pastoral lease, at its closest point, is some 15 kilometres north west of the nearest proposed licence (P16/2215).  Nevertheless, Mr Velickovic’s evidence does establish the existence of some sites on areas associated with this Tjukurpa either on or in the vicinity of the proposed licences.  While the evidence of sites is somewhat general and not detailed as to their nature and location they are according to Mr Velickovic ‘associated with the Tjukurpa story’.  In these circumstances I am prepared to infer that they are sites of particular significance to the native title party.  Some are in the vicinity of the areas of the proposed licences and some may be on them.

[32]      I must now consider whether the presumption of regularity and the protective provisions and procedures of the Aboriginal Heritage Act make it unlikely that there will be interference with any area or sites of particular significance to the native title party.

[33]      My finding is that there is nothing in the circumstances of this case including the location and nature of any sites which would render the regulatory regime ineffective.  Mr Velickovic says that a full Aboriginal heritage survey is necessary after which the grantee party would be free to carry on exploration.  While the grantee party has submitted no written submissions on its own behalf, it has by way of oral evidence expressed its intention to comply with the Aboriginal Heritage Act and conduct a heritage survey where intensive work is undertaken.

[34]      I have previously considered the issue of the relevance of the RSHA and the Government party’s proposed condition in expedited procedure inquiries (Linda Champion (at [29]-[35])).  The situation with respect to the RSHA and the Government party’s proposed condition is somewhat different in the present matter in that they relate to the Central West Goldfields native title party but not the Widji native title party (i.e. the proposed condition will not be imposed in favour of the actual objector, as occurred in Linda Champion).  I can infer from the fact that the Central West Goldfields native title party withdrew its objection based on a CWAHA between them and the grantee party that they are satisfied that Aboriginal Heritage including sites of particular significance will be adequately protected.  Consistent with my finding in Linda Champion I accept that, because the grantee party has signed a RSHA relating to the Central West Goldfields native title party and also entered into a CWAHA with them, that it is aware of its responsibility to protect Aboriginal Heritage.  There is no doubt that the grantee party will consult with the Central West Goldfields native title party and conduct a heritage survey with them in accordance with the CWAHA.  In this situation the Government party’s proposed condition is somewhat curious.  It enables the Central West Goldfields native title party to insist that the grantee party execute a RSHA when they have already entered into a similar alternative agreement which led to withdrawal of the objection.  In these circumstances there would appear to be little point in imposing the condition.

[35]      The Government party’s reason for the condition being imposed in relation to only one native title party is to avoid imposing prohibitive costs on the grantee party  I can only conclude from this that the Government party considers that Aboriginal sites will be protected by one survey with the Central West Goldfields native title party.  There would appear to be some connection between the Central West Goldfields native title party and the Widji native title party.  Paragraph 9 of Mr Velickovic’s affidavit refers to the late Mr Phil Donaldson as ‘the initiated senior elder’ for the area.  In Linda Champion at [60] in paragraph 12, Ms Elizabeth Sambo refers to her ‘late uncle, Mr Phil Donaldson’ as the custodian for the relevant area in that matter.  It thus appears that Mr Phil Donaldson was a traditional custodian for both the Widji and Central West claimant groups.  As the Central West Goldfields claim (and the Widji claim) both completely overlap the area of the proposed licences I am satisfied that a survey carried out by the Central West Goldfields native title party is likely to provide adequate protection to sites of particular significance including those of particular significance to the Widji native title party.  The situation and findings may be different if the requirement to conduct a Aboriginal heritage survey was only imposed on a native title party whose claim overlapped a small proportion of the prospecting licences area (see Linda Champion at [31]) or where there were persons in the different claim groups who had little affinity with each other.

[36]      While I consider it probable that the Central West survey will deal with Widji sites the grantee party is aware of his responsibility under the Aboriginal Heritage Act to ensure protection of all sites.  Being aware of its responsibilities I accept that the grantee party will consult with the Widji native title party about these matters if the tenement is granted to ensure adequate coverage of the heritage survey.  Given the nature of the sites which may exist on the tenement and the Government party’s regulatory regime which apply to them I can see no real risk that they will be interfered with.

Major disturbance (s 237(c))

[37] Section 237(c) of the act requires a predictive assessment on whether the grant of the proposed licences or the prospecting activities undertaken upon grant of the licences are likely to involve (in the sense that there is a real risk of) major disturbance to land, the meaning of which was considered in Dann v Western Australia (1997) 74 FCR 391. The Tribunal must determine whether major disturbance is likely to occur from the viewpoint of the entire Australian community, including the Aboriginal community, as well as taking into account the concerns of the native title party. 

[38]      The native title party contends that the activities permitted by the grant of a prospecting licence would constitute major disturbance to land.  In Linda Champion (at [77]-[79]) I found the regulatory regime imposed by the Mining Act and conditions imposed sufficient to ensure that major disturbance to land was not likely to result from activities permitted by the grant of an exploration licence.  The activities permitted by the grant of a prospecting licence and regulatory regime applicable to them are generally the same as for an exploration licence but less intrusive in that the quantity of material which can be removed is 500 tonnes instead of 1,000 tonnes for an exploration licence (see Walley at [32]). The findings in Linda Champion were made taking account of similar contentions and evidence to that provided in this matter and I adopt those findings for the purpose of this inquiry.

[39]      In making this finding I have had regard to the following matters.

·There are no Aboriginal communities in the vicinity.

·Most of the proposed licence is over pastoral lease where ground disturbance has already and will continue to be carried out.

·There is extensive history of mining and exploration in the vicinity.

·The presumption of regularity in that there is no evidence that there will not be compliance with the Government party’s regulatory regime governing exploration activities.

·The provisions of the Mining Act and conditions imposed on the exploration licence dealing with ground disturbing activities including requirement for rehabilitation of the land (esp. standard conditions 1-4).

·There is no detailed evidence of any sensitive, topographical, geological or environmental factors which would lead people to think that exploration activities would result in major disturbance to the land.

[40]      The native title party made the further particular contention that a permissible quantity of blasting or bulldozing (eg. ‘ten metres by ten metres’) if performed on a geographical feature said to the established in the Creative Era by Widji Ancestors would constitute major disturbance in the view of all Aboriginal people associated with that particular story or song line.  I dealt with a similar contention in Linda Champion (at [79]).  While I accept that the disturbance of a special site would constitute major disturbance to land by the standards of the broader community there is no evidence that such an event is likely to occur in this case.  Such a place would be an Aboriginal site and protected in the manner described above.

DecisionDetermination

[41]      The determination of the Tribunal is that the grants of Pprospecting Llicences P16/2215; P16/2216; P16/2217; P16/2218; P16/2219 and P16/2220 to Cazaly Resources Ltd is anare acts attracting the expedited procedure.

[1]             I note that in the case of these proposed licences, objection applications have also been received from the Central West Goldfields native title party.  Until such a time as that matter is determined, the Western Australian Department of Industry and Resources should not rule on the grant or otherwise of these proposed licences.

Hon C J Sumner
Deputy President

19Xx March 2005